Benefits and Compensation, HR Management & Compliance

Time’s Up: Employee’s Performance Issues Complicated by Serious Illness

A struggling employee’s cancer diagnosis complicated her performance issues. Can the employer terminate the employee for her performance issues while she’s undergoing treatment?Cancer

Employee Fails to Timely Complete Work

“Sarah” was hired as a trust officer at Trident Trust Company, Inc., in Sioux Falls on February 1, 2016. During her 90-day performance evaluation, her supervisor, “Janet,” informed her that her attendance was worrisome, noting she was often late for work or absent.

Janet also addressed her concerns about Sarah failing to finish her assignments on time and spending too much time attending to personal matters or chatting with others. Janet praised Sarah for completing her assignments correctly and displaying a good attitude but nonetheless extended her probationary period for an additional 90 days because of her attendance and performance concerns.

Sarah was diagnosed with breast cancer in October 2016, and the diagnosis was quickly followed by surgeries in November. She became preoccupied with her cancer diagnosis, and her work performance declined in October, November, and December. In January 2017, she failed to complete a task before she left work early for a radiation treatment. Janet grew more frustrated with Sarah’s performance and asked Trident’s vice president, “Bill,” to speak to her about her work issues.

During Bill’s conversation with her, Sarah admitted that she was distracted from her work and acknowledged her declining performance. Bill stated that he was willing to help her, but it was up to her to make the necessary changes. He also warned her that Janet was beyond frustrated with her and that her job was on dangerously thin ice.

Employer Gives Employee Time, But Timeliness Issues Resurface

Sarah’s work performance improved briefly, and it appears that she completed all her assignments despite having to leave work each day for radiation treatments. After she completed her radiation therapy in February, however, she reverted to her old habit of regularly failing to complete important tasks in a timely manner. On April 25, the board of directors recommended that she be terminated.

Sarah was initially granted unemployment benefits by the South Dakota Department of Labor and Regulation’s (DLR) Unemployment Insurance Division. Trident appealed that determination. On appeal, the administrative law judge (ALJ) overturned the DLR’s initial determination and held that Sarah’s conduct constituted work-connected misconduct that barred her from receiving unemployment.

The ALJ commented that Sarah had the knowledge and ability to complete her assigned tasks in a timely manner. However, she repeatedly failed to discharge her duties in a willful and negligent manner. Consequently, she was disqualified from receiving unemployment benefits.

Bottom Line

This case presents a relatively common scenario in the world of HR. The employee’s breast cancer diagnosis complicated matters because her termination, if not handled correctly, could have easily led to a disability discrimination claim. But the employer made all the right moves.

After counseling her on her performance shortcomings, it gave her an opportunity to redeem herself. She briefly stepped up her game, but her performance issues resurfaced after she finished her cancer treatment. As a result, the employer had a solid foundation on which to base its termination decision.

An employee being diagnosed with a serious illness can create a delicate situation from an HR standpoint if her performance begins to suffer. Evaluating her performance should be the only metric you rely on if you eventually decide to discipline or terminate a seriously ill employee.

Kassie McKie Shiffermiller is an editor of South Dakota Employment Law Letter and can be reached at